Continental Casualty Company v. Duyzend et al
Filing
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COMPLAINT against defendant(s) Does 1-100, Kathryn Cox, Henri F. Duyzend, Sharon Duyzend, Cheryl Grant, Beverly Hawley, Richard Hawley, David Hubert, Jill Ortiz, Satoko Prigmore, Thomas Prigmore, William Mark Smith, Daryl Stuart, Laurel Stuart, Kristine Walla, Robert Wallace, Dale Hollingsworth, Ruth Hollingsworth, Sarah Hollingsworth, Thomas Huber, Daniel O'Neal, Patricia O'Neal, Chris Stuart, Cyndi Sundby, Douglas Sundby, Derry Tiedeman, Nicole Tiedeman, Megan Walla, Anne Welsh, Tom Welsh, Sandy Zickuhr, Tracy Zickuhr, Zoe Zickuhr (Receipt # 0981-3321765), filed by Continental Casualty Company . (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Summons, # 14 Summons, # 15 Summons, # 16 Summons, # 17 Summons, # 18 Summons, # 19 Summons, # 20 Summons, # 21 Summons, # 22 Summons, # 23 Summons, # 24 Summons, # 25 Summons, # 26 Summons, # 27 Summons, # 28 Summons, # 29 Summons, # 30 Summons, # 31 Summons, # 32 Summons, # 33 Summons, # 34 Summons, # 35 Summons, # 36 Summons, # 37 Summons, # 38 Summons, # 39 Summons, # 40 Summons, # 41 Summons, # 42 Summons, # 43 Summons, # 44 Summons, # 45 Summons)(Nelson, Justin) Modified on 8/23/2013 to edit capitalization and spelling of party names(PM).
EXHIBIT F
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HONORABLE JULIE SPECTOR
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Hearing Date: Thursday, August 8, 2013
Without Oral Argument
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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
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KATHRYN COX; BEVERLY HAWLEY and
RICHARD HA WLEY, husband and wife;
WILLIAM MARK SMITH and NADINE
SMITH, husband and wife; CHERYL
GRANT; JILL ORTIZ; THOMAS
PRIGMORE and SATOKO PRIGMORE,
husband and wife; ROBERT WALLA and
KRISTINE WALLA, husband and wife;
DARYL STUART and LAUREL STUART,
husband and wife; DOUGLAS SUNDBY and
CYNDI SUNDBY, husband and wife; CHRIS
STUART; MEGAN WALLA; THOMAS
HUBER; DAVID HUBER; DANIEL O'NEAL
and PATRICIA O'NEAL, husband and wife,
DALE HOLLINGSWORTH and RUTH
HOLLINGSWORTH, husband and wife;
SARAH HOLLINGSWORTH; NICOLE
TIEDEMAN and DERRY TIEDEMAN,
husband and wife; TRACY ZICKUHR and
SANDY ZICKUHR, husband and wife, and
ZOE ZICKUHR,
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PLAINTIFFS' MOTION TO AMEND
COMPLAINT
Plaintiff(s),
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NO. 11-2-31164-3 SEA
v.
HENRI DUYZEND, D.D.S. and SHARON
DUYZEND, husband and wife,
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Defendant( s).
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PLAINTIFFS' MOTION TO AMEND COMPLAINT - 1
69496
Peterson I Wampold
Rosato I Luna I Knopp
1501 FOURTH AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101-1609
PHONE: (206) 624-6800
FAX: (206) 682-1415
I.
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INTRODUCTION
Plaintiffs move the Court for leave to file an amended complaint. The proposed amended
complaint is attached to the Declaration of Michael S. Wampold as Exhibit 1.
n.
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STATEMENT OF FACTS
On September 9, 2011, these 29 plaintiffs brought this lawsuit against defendant Henri
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Duyzend (and his wife Sharon Duyzend and their marital community) alleging that Dr. Duyzend
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engaged in multi-decade pattern and practice of negligent and fraudulent dental treatment on his
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patients. See Dkt. No.1, Complaint for Injuries and Damages. Over the course of many years
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Dr. Duyzend performed hundreds of dental procedures on plaintiffs-including root canals and
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crowns-that were not indicated and were unnecessary. Id. at,-r,-r 9-12, 16. What's more, the
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vast majority of Dr. Duyzend's unnecessary dentistry fell below the standard of care for a
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reasonably prudent dentist. Id. at,-r 16. Plaintiffs now face many years of additional dental re-
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treatments to repair the damage that Dr. Duyzend did.
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On June 25, 2013, this Court entered an Order to Stay Proceedings while the parties
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participated in an arbitration before the Honorable Paris Kallas (Retired) at Judicial Dispute
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Resolution. Following six days oftestimony and evidence, Judge Kallas issued a verdict in favor
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of plaintiffs and against defendants, finding that Dr. Duyzend was negligent, failed to obtain
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plaintiffs' informed consent, engaged in fraud, and violated Washington's Consumer Protection
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Act. The plaintiffs, collectively, were awarded $35,212,000 in damages.
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On July 25,2013, this Court reduced the verdict to a judgment against defendants Henri
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and Sharon Duyzend in the amount of$35,212,000.00, and retained jurisdiction for the purpose
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of enforcing the judgment.
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Defendants Henri and Sharon Duyzend own TOG-POP, LLC. See Declaration of
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Michael S. Wampold, Ex. 2, Henri Duyzend Dep., p.l15:2-9. Documents produced during
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discovery-and Dr. Duyzend's deposition-revealed that in December 2008, about six months
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after numerous patients began to make claims against Dr. Duyzend, defendants transferred
PLAINTIFFS' MOTION TO AMEND COMPLAINT - 2
69496
Peterson I Wampold
Rosato I Luna I Knopp
1501 FOURTH AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101-1609
PHONE: (206) 624-6800
FAX: (206) 682-1415
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significant assets to the Delaware LLC. Wampold Dec., Ex. 3; Ex. 2, Henri Duyzend Dep., p.
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107:25-108:11.
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Before the case was privately tried to Judge Kallas, plaintiffs deposed defendant Dr.
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Duyzend at the King County Superior Court. During that deposition, in an effort to obtain
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evidence supporting their fraud and CPA claims, plaintiffs posed questions to Dr. Duyzend about
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his transfer of assets to the LLC, which Dr. Duyzend described as "estate planning." Wampold
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Dec., Ex. 2, Henri Duyzend Dep., p. 90:9-12 Defense counsel objected to the line of questioning
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and the following discussion ensued:
THE COURT: Let me get the time line straight here. He retires in December
of '077
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MR. VERSNEL: Yes.
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THE COURT: Claims start rolling in the spring of'08, March?
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MR. VERSNEL: Yes.
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THE COURT: By June there's approximately 50 claims of which 15 or so
have been settled?
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MR. VERSNEL: My recollection, yes.
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THE COURT: In November of'08, he starts doing the estate planning?
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MR. VERSNEL: Yes.
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Understanding the timeline, Judge Spector ruled that plaintiffs were allowed to go forward with
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their line of questions regarding Dr. Duyzend's so called "estate planning." The trial court ruled
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as follows:
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THE COURT: Okay. This is what the Court's going to do. I'm going to
allow you to make inquiry. I'm going to note [defense counsel's] objection
for the record.
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The timing of everything is critical. I don't think it's essential that they have
to be claims for fraud that were beginning to roll in in the spring of '08, what I
think is essential is that coupled with Dr. To's revelations and the fact that
these first claims for malpractice were coming in, I think mayor may not be
admissible at trial, I'm not going to make that ruling, but I think it's
discoverable because it's important to know what legal vehicles the estate
planning was contemplating without violating attorney-client privilege,
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PLAINTIFFS' MOTION TO AMEND COMPLAINT - 3
69496
Peterson I Wampold
Rosato I Luna I Knopp
1501 FOURTH AVENUE, SUITE 2800
SEATILE, WASHINGTON 98101-1609
PHONE: (206) 624-6800
FAX: (206) 682-1415
obviously, with his estate planner. And but I think: it's ripe for discovery here
today.
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So, I'm going to overrule the objection with the understanding that it may not
be admissible in front of a jury or a trier of fact, however this case is going to
be tried, but I think: it's appropriate, I think: it's fair, without going to -- you
said it right at the very beginning, without going back to chief civil for special
proceeding -- or supplemental proceedings, which is what it was beginning to
sound like when they line up literally right down the hallway for supplemental
proceedings trying to find the assets on basic creditor/debtor law issues, credit
cards, that type of thing. It's not that type of situation. This is more -- I'm
more concerned about the timing ofthings because of Dr. To taking over and
immediately finding problems with the billings and the records.
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So, on that basis alone, I'm going to allow it.
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Wampold Dec., Ex. 4, Hemi Duyzend Dep., p. 110:24-112:4.
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Plaintiffs now seek leave to amend their complaint to add the Delaware LLC owned by
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defendants Hemi and Sharon Duyzend, TOG-POP, LLC, as a defendant to this lawsuit based on
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the fraudulent transfer of assets completed by defendants in order to escape liability and
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collection.
III.
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STATEMENT OF ISSUES
CR 15(a) provides liberal standards for amendment. Are plaintiffs entitled to an order
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granting leave to amend the complaint to add TOG-POP, LLC as a named defendant where
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justice requires such amendment and where this Court retained jurisdiction for the purposes of
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enforcing the judgment?
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This motion is supported by the Declaration of Michael S. Wampold, together with the
pleadings and files herein.
V.
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EVIDENCE RELIED UPON
IV.
LEGAL ARGUMENT
Under CR 15(a)'s liberal standards for amendment, plaintiffs should be allowed to amend
their complaint. CR 15(a) states:
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[A] party may amend his pleadings only by leave of the Court or by written
consent of the adverse party; and leave shall be freely given when justice so
requires. (emphasis added).
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PLAINTIFFS' MOTION TO AMEND COMPLAINT - 4
69496
Peterson I Wampold
Rosato I Luna I Knopp
1501 FOURTH AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101-1609
PHONE: (206) 624-6800
FAX: (206) 682-1415
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"It is often said that the test as to whether the trial court should grant leave to amend is
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whether the opposing party is prepared to meet the new issue." Karl Tegland 3A Washington
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Practice, Rules Practice CR 15 (5 th ed. 2006) (citing Quackenbush v. State, 72 Wn.2d 670, 434
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P.2d 736 (1967)).
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Here, justice requires allowing plaintiffs to amend their complaint to add the defendants'
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corporation, TOG-POP, LLC, as a defendant to this lawsuit, as it is clear that defendants engaged
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in the fraudulent transfer of significant assets to the LLC for the purpose of avoiding liability and
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collection by any plaintiffs, including these plaintiffs, that ultimately obtained an enforceable
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judgment against defendants in violation of Washington's Uniform Fraudulent Transfer Act
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statute, RCW 19.40 et seq. Moreover, clearly these defendants, as the owners of the LLC, are
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prepared to meet any new issues related to their LLC and collectability of the debt that they now
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owe.
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For these reasons, plaintiffs respectfully request leave to file an amended complaint
adding TOG-POP, LLC as a defendant to this lawsuit.
VI.
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PROPOSED ORDER
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A proposed order is attached hereto.
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DATED this
Sfday of July, 2013.
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R7C{KNM
PETERSONIVVAMPOLD
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Michael S. Wampold, WSBA No. 26053
Ann H. Rosato, WSBA No. 32888
Mallory C. Allen, WSBA No. 45468
Attorneys for Plaintiffs
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PLAINTIFFS' MOTION TO AMEND COMPLAINT - 5
69496
Peterson I Wampold
Rosato I Luna I Knopp
1501 FOURTH AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101-1609
PHONE: (206) 624-6800
FAX: (206) 682-1415
CERTIFICATE OF SERVICE
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I certify that on the date shown below a copy of this document was sent as stated
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below.
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Clerk of the Court
King County Superior Court
516 Third A venue
Seattle, WA 98104
Honorable Julie Spector
King County Superior Court
516 Third Avenue, Judge's Mailroom
Seattle, WA 98104
John Versnel
Lawrence & Versnel PLLC
4120 Columbia Center
701 Fifth Avenue
Seattle W A 98104
John E. Hart
Hart Wagner
2000 SW Broadway, Suite 2000
Portland, OR 97205-3070
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SIGNED in Seattle, Washington this --'-_ _ day of July, 2013.
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PLAINTIFFS' MOTION TO AMEND COMPLAINT - 6
69496
Peterson I Wampold
Rosato I Luna I Knopp
1501 FOURTH AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101-1609
PHONE: (206) 624-6800
FAX: (206) 682-1415